National Republican., 1887-10-06
POWERS OF ATTORNEY.
Rights Acquired Under Them Against
the United States,

livered by Judge Barr, OF Louisville, KY,
on application made 10 him for an order d.
recting the payment TO the agent In Louis
vile, KY, Of Mr.. John Duff, who had been
witness In case on behalf Of the United
States and who put In his claim for mile
age and witness fees. MIR. Dun, having re-
turned home "a considerable distance from
where the court sat) authorized the United
States marshal at Louisville, by power OF
attorney, to collect the amount due him.
The Treasury Department refused to recog-
nize the power OF attorney, upon the
ground, chiefly, that IL did not recitc the
number OF the treasury warrant In accord.
ance with section 3477 Of the Revised
Statutes OF the United Stetee
Upon a motion for rehearlug filed by the
Hon. M. J. Durham, first comptroller, the
court reafllrmed the general doctrines In
volved. But, on an examination OF tie
paper Itself, found that there was q slight
technical defect in the certl1catlon by the
notary public before whom the acknowl-
edgement was had, which was easily cor
rected by recertiflcatlon.
The opinion announces principles OF great
interest to attorneys having dealing with
the government, and Is full recognition
Of the fact that the Treasury Department
must recognize attorneys as agente, and
they, as agents, have rights under the law
which cannot be ignored by the depart
ment officers, and II refused recognition,
the courts, In accordance with the doctrines
laid down by Judge Barr, will be prompt
and ready to grant the requisite relief
After the opinion was rendered on the re-
sponse OF the marshal, the honorable first
comptroller, Mr.. Durham, presented au
able argument against the conclusion indl-
Gated In the opinion, and asked reconsld
Grafton Of the question.
The court Immediately suspended the
order which 1t had entered, aud has since
given the question careful reconedera-
tion. The opinion is as follows:
The question is whether witness may re.
ceive payment from the marshal of his wit.
ness fees which have been allowed him by the
order OF court by and through dulyauthorized
agent, or is he compelled b receive and re.
ceipt for the money in person. II is Insisted
that this court has no Jurisdiction to determine
the question. but that 1t rests solely with the
first comptroller.
The case in which the witness Duff testified
being In this court, and tho money in the
hands OF the marshal with which To pay such
witnesses. 1t would seem the general powers
Of the court would be sufficient TO give II jurls-
diction over this question.
However that may be-, we think the jurisdic.
w. tion Is IS specially given by Congress. Section
where the United States are parties, the mar
shal, on the order ofthe court, TO be entered on
s Isl minutes y, gay to the Jurors and witnesses all
entitled, which sum shall be allowed him at
the treasury In his accounts"
This would, l think, authorize court to dl-
rect the payment TO witness or juror. and In
proper case the payment OF such witness or
jurors authorized agent, unless there is sope
other provision ofthe law prohibiting payment
to an authorized agent.
Section S477 provides that "all transfers and
assignments made of any claim upon the
United States, or OF any part or share thereof
or interest therein, whether absolute or condi-
tional, and whatever may be the consideration
therefor, and all powers OF attorney. orders. or
other authorities for securing payment of any
spch claim, or OF any part or share thereof.
shall be absolutely null and void, unless they
are freely made and executed In the presence
OF at least two witnesses, after the allowance
OF such a claim, the ascertainment Of the
amount due and the issuing of a warrant for
the payment thereof. Such transfers, assign.
ments, and powers of attorney must recite the
warrant for the payment, and must be ac
knowledged by the person making them before
an officer having authority to take acknowl-
edgtments of deeds and shall be certiied by
the officer, and 1t must appear by the certificate
that the officer at the time of the acknowledge
ment read and fully explained the transfer
assignment, or warrant OF attorney to the per
son acknowledging the same"
II Is insisted that the first part of thus sec
tion applies to witnesses and jurors claims
but the latter part does not apply. because
they ere not paid by warrant on the treasury
The result Of this construction will be topro
against the United States at any time aud under
any circumstances unless IT Is paid by warrant
on the treasury. and prohibiting the receiving
OF any claim by and through an authorized
| agent, unless such claim Is paid by u warrant
on the treasury. The common law recognizes
the right of q person to do by another that
which he can do by himself, except in cases of
personal trustsor where personal discretion Is
| to be exercised. This right Congress can take
| away, SO far as securing claims against the
United states; We are strongly inclined to the
opinion that In the class OF claims for which a
warrant on the treasury is never drawn, II the
claim has been ascertaned aud allowed, and
everything done which Is necessary to give the
claimant the right of payment the law wolld
be complied with, and that the claimant mi ght
thereafter collect the claim by an authorized
agent.
The right to collect claim by an author.
lied agent Is common law right, which u
party should not be deprived of unless Con.
gress has so enacted.
The supreme, Court in constituting this sec.
tlon has not adhered to literal construction
Of the Language, but rather looked to the object
Of It's enactment.
Thus the cnurt has held that claims against
the United States, although not allowed or the
amount ascertained, may be assigned to an
assignee in bankruptcy; that Notwithstanding
the DfOad language used In the section, II does
not apply to transfers which are involuntary
| or which are made by the law such US to
heirs, devisees. or personal representations.
Erwin vs.. U. 8, 81; U. S, r.. 392. Again, in
Goodman VS.; Niback, lo2 U, 5, R, $50, tho
assignment of claim against the United
States when made by general assignment of
az OF the claimants property tor the benefit of
If this section applies to witness and jurors
fees, then the allowance of the court of the
specific sum should be regarded as the equiv
alent of a warrant for its payment.
The law which provides for the payment OF
Jurors and witnesses, as indicated In section
s55 was enacted by the same Congress that
passed the law in regard to assignments, trans
fers, and powers of attorney to secure payment
OF claims against the United States. Both laws
were approved the same day-Feb 2d, 1875
and but for the broad and comprehensive lam
guaee used by the Supreme Court In Giliis vs..
United States (05 U. S. R.. 40O should have
been inclined to decide that section 3i17 did
not apply to jurors and witnesses claims. aud
that the marshal should pay to the person or
pertons whom the court ordered, whether the
person be principal or authorized agent. do
not see that the provisions of section $500, Re-
y,aed ,at Statutes throw any lght upon the luas;s
1876 lroy ided that "it shall be the duty of any
niStuTsing ohicer having any public money in
lr1sled 70 him for disbursement to deposit the
me with the treasurer, and to draw from the
same only as 1t may be required for pay hents
10 be made by him in pursuance of law" and
by amendment Of 1877 the words "and draw
for the same only In favor of the persons to
whom payment Is made" were added.
This provision is clearly Intended TO prevent
dlsDursing officers from drawing public funds
from the depository In which they are placed
for other Than public uses; hence the dis.
bnrsing onioeIs are required to draw drafts in
favor OF the persons 10 whom payment is
maui, But TINS Jaw does not direct to whom
payments shall be made; such drafts NAV
therefore be drawn In favor of an authorized
agent II he is the person TO whoa the actual
payment is made.
more careful examination of the power of
attorney filed In this case satisfies me that Il
does not conform to al Of the provisions of
8i17 section, Revised Statutes, in that the 0til-
GERS certificate fails TO state that he read and
iully explained the power of attorney to John
The former opinion will be withdrawn aud
this one filed III itS stead, aud for the reason
stated the order heretofore entered will DC set
aside, and 1t is so ordered
cordance with the opinion and obtain juig-
The attorney for Mr., Duff, Mr.. Mckee,
Will file corrected power of attorney In ac-
ment.
ALEXANDRIA MATTERS.